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J U D G M E N T K.G. BALAKRISHNAN, J.

Both these appeals are filed by Messrs. Flash Laboratries Limited, a company engaged in the manufacture of tooth paste ("Prudent"), falling under chapter Heading 3306.00 of the schedule to the Central Excise Tariff Act, 1985. The appellant has been selling its products to their holding company, Messrs. Parle Products Limited, which is a subsidiary company of Messrs. Parle Biscuits Limited. The appellant was found paying duty at the price at which the goods were being sold to the holding company, namely, Parle Products Limited. A show cause notice was issued to the appellant company alleging that Messrs. Parle Products Limited and Messrs. Parle Biscuits Limited were "related persons" and were purchasing goods at lower prices and selling the same at higher prices and that the appellant had not filed the price list in Part IV for the sale to a related person, rather they filed the price list in Part I. The Revenue took objection that this amounted to mis-statement. The appellant was also asked to show cause as to why Rs.11,30,570.35p should not be demanded from him as differential duty for the period September, 1986 to May, 1989. The appellant was given a personal hearing and the Collector of Central Excise confirmed the demand for differential duty. Aggrieved by the same, the appellant filed an appeal before the Custom Excise & Gold (Control) Appellate Tribunal. The Tribunal confirmed the demand, but reduced the penalty to Rs.50,000/-. Civil Appeal No. 5619 of 1994 is directed against that decision of the Tribunal.

We heard learned counsel for the appellant as also learned counsel for the Revenue. The counsel for the appellant contended that the appellant- company, Messrs. Flash Laboratories Limited is not a "related person" as against Parle Products Limited and Messrs. Parle Biscuits Limited. Admittedly, the appellant-company is a subsidiary company of Parle Products Limited. Messrs. Parle Products Limited has also another subsidiary company, that is, Messrs. Parle Biscuits Limited. Sixty per cent of the products manufactured by the appellant are sold to Messrs. Parle Products Limited and forty per cent of the products are sold to Parle Biscuits Limited. According to the respondent, the appellant and Messrs. Parle Biscuits could be treated as "related person" within the meaning of Section 4(4)[c] of the Central Excise Act, 1944.

Having regard to the above decision and the plain meaning of the definition of "related person", it is to be noticed that the appellant is a subsidiary company of Messrs. Parle Products Limited and Messrs. Parle Biscuits Limited is also a subsidiary company of Messrs. Parle Products Limited. Therefore, the relationship between the appellant and Messrs. Parle Biscuits Limited, though indirect, they have mutual interest in the business of each other. The facts and circumstances of the case show that there is mutuality of interest between the three companies as sixty per cent of the products of the appellant are sold to Messrs. Parle Products Limited and the remaining forty per cent of the total product of tooth paste is being sold to Messrs. Parle Biscuits Limited. Moreover, Messrs. Parle Products Limited are incurring the expenses for sales promotion and advertisement for the sale of the appellant's product, namely, "Prudent tooth paste".

Having regard to the facts and circumstances of the case, we do not find any reason to disagree with the views expressed by the Tribunal.

In Civil Appeal No. 7216 of 2000, the appellant further contended that it received four show cause notices dated 10.6.1991, 20.8.1991, 1612.1991 and 13.4.1992. The appellant contended that the Asstt. Collector held that the appellant and Messrs. Parle Products Limited and Messrs. Parle Biscuits Limited are "related persons" but this order was reversed by the Collector vide order dated 23.8.1991 and according to the appellant, the department did not challenge the subsequent order and therefore the subsequent order attained finality. The Tribunal has dealt with this aspect in Paragraph 7 of the impugned order. It was held by the Tribunal that the period relied upon by the appellants is July' 89 to Jan' 91 whereas the SCNs dealt with in the Order-in-Original pertained to the period 14.2.1991 to 31.3.1992 and that these SCNs arose out of the Order-in-original No. 87/CE/01 and this order was not challenged by the appellants and accordingly the tribunal was of the view that the four SCNs and the Order-in-Original No. 87/CE/91 are sustainable in law.